Proposals to require judges to deny bail more often advance through House panel, signaling a broader agreement

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

A Texas House committee on Monday approved a revised package of legislation to require judges to deny bail to some criminal defendants, signaling that lawmakers may be nearing a deal to finally pass one of Gov. Greg Abbott’s top priorities over three straight legislative sessions.

The House Criminal Jurisprudence Committee voted out two measures that would ask voters to amend the state Constitution to expand the list of violent offenses for which judges can deny bail, and to automatically deny bail to any undocumented immigrant accused of certain felonies. The panel also advanced an amended version of Senate Bill 9, which would enhance a 2021 state law that limited who is eligible for release from jail on a low-cost or cashless bond.

Under the state Constitution, defendants, who are legally presumed innocent, are largely guaranteed the right to release before their cases are resolved — except in limited circumstances, such as when charged with capital murder.

The movement in the House suggests that top negotiators from both parties are closing in on an agreement with Abbott on a bail package that could muster the 100 votes needed in the House to put a constitutional amendment before voters. The package needs support from at least 12 House Democrats to pass if all 88 Republicans are on board.

An agreement would likely clear away a legislative hurdle over which Lt. Gov. Dan Patrick had threatened to force a special session.

Final approval by the Legislature would notch a massive victory for Abbott, who has made stiffening the state’s bail laws an emergency item for three consecutive sessions. Before this year, the effort died repeatedly in the House, with Democrats running out the clock or outright rejecting the proposals and denying the two-thirds support necessary to put a constitutional amendment on the ballot.

The bipartisan buy-in also reflects the shifting politics of crime and immigration that have aligned some Democrats more closely with Republicans on proposals that civil rights advocates had hoped would be rejected altogether. The expansiveness of the measures, too, reveals the extent to which state lawmakers, under Abbott and Patrick, have swung toward a tough-on-crime approach to criminal justice reform, away from the years-long effort in Texas to reduce mass incarceration and reduce wealth-based detention.

The package the committee approved Monday is the product of a weeks-long negotiation between the governor’s office and top Republicans and Democrats across chambers.

Republican leaders framed the bail issue as one of life-and-death, arguing that stricter bail laws were necessary to rein in judges setting low or no bond for dangerous defendants, and to curtail violent crime committed by people out on bond. Progressive Democrats and civil rights groups, meanwhile, viewed the bail crackdown as a violation of the civil liberties of criminal defendants. They argued that the measures would pack the state’s already overcrowded jails and undermine public safety by locking up people not yet convicted of a crime.

Bail is a legal mechanism used around the country to incentivize defendants who have not been convicted to appear at court hearings. Defendants can pay the full bail amount, which is refundable if they go to all their hearings, or they can pay a nonrefundable partial deposit to a bail bond company that fronts the full amount. Defendants who cannot afford to pay a deposit or their bail are often left detained for weeks or months.

The House Criminal Jurisprudence Committee advanced amended versions of Senate Joint Resolution 5, Senate Joint Resolution 1 and SB 9 on Monday.

The new version of SJR 5 goes further than the Senate’s original proposal by requiring judges to deny bail in certain cases, rather than simply giving them the discretion to do so.

The harsher language was demanded by Abbott, who argued that automatically denying bail for certain violent offenses was necessary to restrain “activist judges” setting low or cashless bail for defendants who then go out and commit more crimes.

But the legislation moderates on Abbott’s proposal by requiring the state to prove that a defendant is either a flight or public safety risk to obligate a denial of bail — instead of requiring defendants to show that they are not a danger and will appear in court.

Some Democrats and advocates condemned the idea that judges would be forced to deny bail in any cases, arguing that that undercuts judicial discretion and turns pretrial detention of people who have not yet been convicted of a crime into the default.

Automatic denial of bail, Rep. Ann Johnson, D-Houston, argued last week, “completely supersedes the judicial discretion that we should have with our courts.”

The amended version of SJR 5 would also provide defendants with a right to an attorney in bail hearings, and it would instruct judges to impose “conditions of release only necessary to” ensure a defendant does not flee nor pose a threat to public safety — language that does not go as far as a proposal from a previous session that told judges to use the “least restrictive means” possible to secure public safety and a person’s appearance in court.

It was approved 10 to one by the committee.

The House Criminal Jurisprudence Committee also passed, seven to four, an amended version of Senate Joint Resolution 1, which would deny bail to any unauthorized migrant charged with certain felonies.

The negotiated version tightened the definition of “illegal alien” used in the legislation to avoid sweeping in lawful permanent residents and those granted protected statuses, such as asylum and military parole in place, which is given to certain family members of U.S. service members.

The new version also limited the types of offenses for which an undocumented defendant would be denied bail — from all felonies to certain election felonies, drug-dealing crimes and the most serious violent felonies, including murder, sexual assault, human trafficking and aggravated robbery.

The House has until May 27 to approve the constitutional amendments with the high two-thirds vote margin. Then the Senate must concur with the new proposals for them to reach Abbott’s desk.

---

First round of TribFest speakers announced! Pulitzer Prize-winning columnist Maureen Dowd; U.S. Rep. Tony Gonzales, R-San Antonio; Fort Worth Mayor Mattie Parker; U.S. Sen. Adam Schiff, D-California; and U.S. Rep. Jasmine Crockett, D-Dallas are taking the stage Nov. 13–15 in Austin. Get your tickets today!